Robert Lewin v Nicholas Gray

A breach of health and safety regulations does not ordinarily create civil liability where Parliament has expressly provided that the breach is not actionable. The court will not use common-law negligence to impose a substantially identical obligation unless an independent common-law duty exists. A client’s regulatory duty to ensure preparation of a construction phase plan was not, in the circumstances, an equivalent common-law duty owed to the contractor. The claimant also had to show that the alleged breach probably caused the accident; hindsight evidence that written planning might have prompted safer precautions was insufficient.

The claimant, a self-employed builder, was catastrophically injured after falling through a fragile barn roof while installing guttering for the defendant, a self-employed farmer. Liability was tried as a preliminary issue.

The claim relied on negligence, the Occupiers Liability Act 1957, and alleged breaches of the Construction (Design and Management) Regulations 2015. The central issues were whether the defendant owed a common-law duty to ensure that the claimant prepared a construction phase plan, notwithstanding the statutory bar on civil action for breach of the Regulations, and whether any failure caused or materially contributed to the accident.

1. Claim dismissed. The defendant was not liable for the claimant’s injuries.
2. The defendant owed the common duty of care under section 2(2) of the Occupiers Liability Act 1957. Under section 2(3)(b), it was reasonable to expect an experienced builder to appreciate and guard against risks ordinarily incident to roofing work, so far as he was left free to do so.
3. The defendant was a commercial client and had breached regulation 4(5) of the Construction (Design and Management) Regulations 2015 by failing to ensure preparation of a construction phase plan. Section 47(2) of the Health and Safety at Work etc Act 1974, as amended, provided that breach of such a statutory duty was not actionable.
4. There was no independent common-law basis for imposing on this defendant the regulatory obligation to require a contractor to produce a document which the contractor was not otherwise required to produce. It was not fair, just and reasonable to override the express statutory bar. Roberts v Dorman Long & Co Ltd concerned a regulatory safety measure which also formed part of an existing common-law safe system of work and was materially different.
5. In any event, causation was not established. The claimant’s evidence was based on hindsight. It was not probable that requiring him to write down his usual mental risk assessment would have caused him to request the defendant’s machinery as a crash deck.
6. The allegations concerning contractor selection and supervision were untenable. Alternatively, if liability had been established, responsibility would have been apportioned 75% to the claimant and 25% to the defendant.